At Heritage, we believe that education is an important part of the estate planning process. On this blog we will be sharing some information, articles, and opinions that you may find helpful along your way.

Will

01/15/2017

The challenge of creating an estate plan can be reduced if broken down into steps.

Taking a step-by-step approach to estate planning can make the process simpler as described recently in the Go Banking Rates article "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

An estate planning attorney can guide you through the process of making an estate plan less daunting. Reference: Go Banking Rates (June 22, 2016) "Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan."

The majority of assets, personal property items, are often dealt with simply by providing that they should be divided between various family members. A typical clause might state something like, "Everything else should be equally divided between my children and their descendents."

The small items of tangible personal property are often the biggest source of disputes between family members. If multiple people want the same item, then they might fight about it. Parents of minor children instinctively know this.

No parent with two teenagers would bring home one iPad and tell the children to decide between themselves which one of them should have it exclusively. Adult children are not always all that different when they are told to decide between themselves who gets what.

For this reason it is important to spend some time thinking about items of tangible personal property when planning your estate. If you think certain items might be a source of contention, then you can direct who gets them beforehand. You can also suggest that family members take turns picking items or that they use some sort of service, such as software or a professional, to help divide things peacefully and equally.

An estate planning attorney at Heritage Elder Law & Estate Planning can help guide you through your own unique situation in preparing a will. Visit our website to learn more.

06/19/2016

New rules will make it even more difficult to pass certain firearms from generation to generation through a gun trust.

Machine guns and silencers are difficult to transfer from person to person and it is about to become even more difficult as Private Wealth reports in "It Will Soon Get Tougher To Create A Firearms Trust." A transfer between persons now requires notice to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives as well as a $200 transfer fee and the approval of local law enforcement officials. Fingerprints and background checks must also be obtained.

Gun trusts have offered a way around many of those burdens and allowed families to pass on their firearms without having to cut through too much red tape.

As of July 13, 2016, new rules will be in place that will make transferring firearms into a gun trust more difficult. Every "responsible person" in the trust will need to go through fingerprinting and background checks. This includes the trust grantor, trustee and some beneficiaries. Notice will also need to be given to local law enforcement, however they will not need to sign off on the transfer.

Fortunately, gun trust applications received before July 13, 2016 will be grandfather into the current rules.

02/26/2016

It can be a tough decision but you can prevent your children from receiving any part of your estate.

As a teenager a man had a relationship that resulted in a daughter but he did not find out until the daughter wrote to him with the news that her mother had identified him as the father while the mother was on her death bed.

The man paid for DNA testing which confirmed that she was his only child.

Unfortunately, the father and daughter ultimately did not get along and ceased communication. The man lives with a partner who wishes to give him her house when she passes. However, this partner is reluctant to do so. It seems she does not want the daughter to inherit the house when the father passes away.

The man wonders how he can ensure that the daughter will not inherit the house.

The answer to the reader's question is very short and simple. He can have a will prepared to specifically exclude the daughter and any of her children.

Nevertheless, the article does not elaborate regarding why this needs to be done.

Accordingly, a more complete explanation would have noted what happens when a single person passes away without a will. In such circumstances, the laws of intestate succession apply. Consequently, the estate passes to any living children.

So, if you do not want a child to inherit your estate, you need a will. However, that is not all that must be done.

The law assumes that if a child is not mentioned in a will, it was an oversight. The judge can reconstruct the will to include the child. For that reason the child must be mentioned in the will and specifically disinherited.

A meeting with an estate planning attorney can help you accomplish your goals. Visit our website to learn more

02/24/2016

Your estate plan should be reviewed occasionally and linking it to the annual tax season could be beneficial.

The tax season is a time for gathering all of your key financial information and is an excellent time to take a look at your estate plan. While doing your taxes you will be gathering much of the same documentation needed to review an estate plan. In addition, the documentation will be fresh in your mind.

Review or Get a Will – Spend a little time to review your will and make sure everything is up to date. If you do not already have a will, visit with an estate planning attorney about getting one.

Prepare a Letter of Instruction – Make a list of your assets, where they are located, and how they should be handled in your estate.

Review Beneficiaries – Since you should have the asset documentation available as part of your tax preparation, make sure all beneficiary designations are up to date.

Consider a Trust – Again since you already have the documentation handy, tax time is a good time to have a trust drawn up and to transfer assets into the trust.

Beware Free Lunches – Many shady companies like to offer free seminars on estate planning or retirement planning around tax season. They know people tend to worry about their finances at tax time. Often these seminars offer a free lunch. Usually, these are nothing more than heavy-handed sales pitches and you should avoid them.

The person who prepares your taxes and your estate planning attorney could work together. Consider it as tax time comes around.

02/16/2016

Some people are turning to the older option of funeral services at home rather than the funeral home.

Before the Civil War most people were buried at home after services held by their families but public mourning with morticians preparing the remains has become the tradition.

The New York Times reports that many Americans are now looking to go the older route and have funeral services conducted in their own homes by family members in "Start-Ups Take Rites From the Funeral Home to the Family Home." One of the big benefits for many people is that home funerals are much less expensive than using a funeral home. Other people prefer the intimacy of services conducted in the home.

It is a good idea to think about how you would like your funeral to be conducted at the same time you are creating an estate plan.

Whether you would prefer a home funeral or a funeral home, you can make your preferences known in your will or in another document. As long as your preferences are reasonable and legal, then they can be followed. To learn more about wills, powers of attorney, and your estate plan, attend one of Heritage's free workshops.

11/24/2015

Four large charities are locked in a fight against the son of an Alzheimer’s patient amidst charges of a fraudulently created will for another woman.

Two key facts are not under dispute in an estate battle in the United Kingdom. The facts are that Dorothy Whelan executed a will in 1982 leaving her £1.6 million estate to four charities and a second will was created in 1999 leaving the estate to Hazel Turner.

When Whelan passed away in 2012, the charities sued Turner claiming she created the second will fraudulently. Since she is now 95-years-old and incapacitated due to Alzheimer’s, her son is fighting the battle on her behalf.

The Turner side of the story is that Whelan and Turner were childhood friends and continued that friendship until Whelan passed away. According to this side, the 1982 will reflected the wishes of Whelan’s husband with whom she created mirror wills.

The husband wanted to support the charities, but when he passed away in 1989 Mrs. Whelan changed her mind and wanted to take care of her friend.

The charities, on the other hand, claim that the 1999 will was created under suspicious circumstances. They claim that Whelan may not have been competent at the time. The charities also claim that the alleged witnesses to the 1999 will have no recollection of seeing Whelan and that they thought they were witnessing a will for Mrs. Turner.

10/21/2015

One can only hope that this decision by an appellate court in Michigan does not reflect a slippery slope of decisions. At its essence, this ruling says that it is possible for an attorney to be unethical and profit from the will that he created.

Attorneys are held to certain ethical standards, one of which is very clear: an attorney should not create a will for a non-relative that includes a large gift that is to be given to that attorney. Common sense tells us that the attorney is a trusted professional, and the trust placed in the attorney by an incompetent or unsophisticated client could be abused if the attorney did not follow this basic tenant of legal practice.

Despite this well-known rule, an attorney in Michigan drafted a will for his long-time friend that gave $14 million to the attorney and his children. This was nearly the entire estate. The deceased's family sued to have the will declared invalid. The trial court ruled that since the attorney acted unethically in drafting the will, the will itself was against public policy and invalid.

The attorney appealed and won.

The appellate court decided that the will was not automatically invalid. Instead, since the attorney acted unethically, it created a presumption that he exerted undue influence. If the attorney can prove that he did not exert undue influence, then the will remains valid. The Detroit Free Press reported this story in "Court: Lawyer's $14M inheritance unethical, not invalid."

Ordinarily the person claiming there was undue influence in creating a will has the burden to prove the claim, which is often difficult. It remains to be seen how difficult it will be for the attorney to prove that he did not exert undue influence. This case will be watched closely by those in the estate planning industry as well as legal ethics experts. To learn more about Heritage and our knowledgable, ethical attorneys, visit our website.

10/09/2015

Reports of the failure of Americans to have their wills properly prepared are frequent. But one survey revealed that we don’t like to do wills because the entire process is daunting. We’re not sure what we need to know, we don’t understand how the process really works, and we are afraid that an attorney will either make us look foolish or not do what they say they will do.

It should not come as a surprise that only 34% of all Americans have created a will. But a survey from Everplans has revealed that we don’t know enough about the process and that is the real issue behind our national reluctance to have our wills done.

The usual reason given for why so many people have not created estate plans is that death is a taboo subject in American culture. People do not want to think about their own deaths and what will happen to their families and property afterwards.

However, only 18% of the respondents to the survey gave that as a reason that they did not have an estate plan. Instead 95% of those without wills cited a lack of information about creating estate plans and services to create them as part of the reason they have not acted.

It is unclear why people think they do not have the information needed to create an estate plan. People are not required to make their own estate plans or draft their own wills. In fact, it is extremely inadvisable to do so. Instead, people should seek out experts who have the information and can do all the required drafting.

And those experts are not hard to find. They exist in all but the smallest, rural communities. They are estate planning attorneys.

If you think that you do not have the information that you need to draft your will, contact an estate planning attorney who will be happy to help you. For more information on Heritage and our process, attend one of our free estate planning workshops.

10/08/2015

According to a homeless man in New York City, the executor of his long-standing friend and host is refusing to give him his rightful inheritance of $100,000. The three year battle is not yet over.

Raphael Lebron lived with his friend Winfield Huppuch, a publishing executive, for twelve years. When Huppuch died, Lebron was locked out of the apartment. Huppuch’s brother, the executor of the estate, refused to let Lebron in, even to collect his belongings.

Lebron unsuccessfully sued to be allowed back in the apartment and became homeless. Now, a new dispute over the estate between Lebron and the executor has made its way to court.

Huppuch’s will left Lebron an inheritance of $100,000, money which Lebron says he needs to find a new home. However, in the three years since Huppuch passed away, the executor has refused to give the money to Lebron.

The executor’s attorney claims that Huppuch had second thoughts about his will and shortly before his death, went to the attorney and asked for a new will to be drafted. To provide guidance, Huppuch marked up his then current will with the changes that he wanted to make.

One of the changes was removing the bequest to Lebron. But before the new will could be drafted and executed, Huppuch passed away.

This is one of those cases that presents courts with problems. Even though it might be clear that Huppuch intended to not leave anything to Lebron, ordinarily the will that was in effect when a person passes away is the ultimate say about who gets what. Consequently, the will legally in play would leave an inheritance for Lebron.

While exceptions can be made, it is not yet clear whether that is appropriate in this case.

To ensure that you and your loved ones have the proper estate planning documents, contact us.